For the petitioner-appellant-petitioner there were briefs
by Robert H. Duffy, Sean M. Scullen, and Quarles & Brady LLP,
Milwaukee, and oral argument by Robert H. Duffy.

For the respondent-respondent, Labor and Industry Review
Commission, the cause was argued by David C. Rice, assistant attorney
general, with whom on the brief was Peggy A. Lautenschlager, attorney
general.

For the respondent-respondent, Susan Catlin, there was a
brief by Monica M. Murphy and the Wisconsin Coalition for Advocacy,
Milwaukee, and oral argument by Monica M. Murphy.

An amicus curiae brief was filed by Melissa A. Cherney
and Chris Galinat, Madison, on behalf of the Wisconsin Education
Association Council.

An amicus curiae brief was filed by Paul A. Kinne,
Madison, on behalf of the Wisconsin Academy of Trial Lawyers.

2003 WI 106

notice

This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No.02-0815

(L.C. No.

01 CV 289)

STATE OF WISCONSIN:

IN SUPREME COURT

Crystal
Lake Cheese Factory,

Petitioner-Appellant-Petitioner,

v.

Labor
and Industry Review Commission and

Susan
Catlin,

Respondents-Respondents.

FILED

JUL 11, 2003

Cornelia G. Clark

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals.Affirmed.

¶1N. PATRICK CROOKS, J. This is a review of a
decision of the Court of Appeals, District III,[1]
which affirmed an order of the circuit court of Barron County, the Honorable
James C. Eaton presiding.The circuit
court affirmed a decision of the State of Wisconsin Labor and Industry Review
Commission (LIRC), which reversed an order of Administrative Law Judge (ALJ)
Gary Olstad.LIRC determined that Susan
Catlin (Catlin) was an individual with a disability within the meaning of the
Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31-.395
(1999-2000),[2] and that
Crystal Lake Cheese Factory had discriminated against her based on her
disability within the meaning of the WFEA.LIRC found that Crystal Lake's refusal to modify Catlin's job duties to
exempt her from performing the heaviest physical tasks, and to make physical
modifications to the work place, constituted the denial of a reasonable
accommodation, which it could have provided without hardship.

¶2We are presented with the following issues: (1) whether LIRC
reasonably interpreted Wis. Stat. § 111.34(1)(b)[3]
and § 111.34(2)(a)[4] of the WFEA,
when it found there was a reasonable accommodation Crystal Lake could have
provided its former employee, Catlin, without hardship; (2) whether Crystal
Lake was denied due process by LIRC's failure to consult with the
administrative law judge; (3) whether there was substantial and credible
evidence to support the factual findings made by LIRC, upon which it based its
decision that there was a reasonable accommodation Crystal Lake could have
provided Catlin, without hardship, within the provisions of
Wis. Stat. § 111.34(1)(b) and § 111.34(2)(a).

¶3We affirm the decision of the court of appeals.Accordingly, we hold that requiring Crystal
Lake to modify the job duties of Catlin and make physical modifications to the
workplace was not unreasonable.With
such reasonable accommodations, she would have the ability to undertake,
adequately, her job-related responsibilities.

¶4Next, we hold that Crystal Lake was not denied due process when
LIRC, prior to reversing the ALJ's holding, failed to consult with the
ALJ.We hold that since LIRC's findings
did not hinge on issues of witness credibility, LIRC was not required to confer
with the ALJ, and that there was therefore no violation of Crystal Lake's due
process rights.

¶5Finally, we hold that there was substantial and credible
evidence in the record to justify LIRC's findings.There was substantial evidence to show that Crystal Lake could
have made reasonable accommodations for Catlin, and Crystal Lake has failed to
meet its burden of establishing that such reasonable accommodations for Catlin
would create hardship on it.

I. FACTUAL
BACKGROUND

¶6In August 1995 Catlin was hired by the Crystal Lake Cheese
Factory to work in its wholesale department.The wholesale department consisted of four positions: department head,
cheese cutter, cryovacer (shrink-wrapping or bagging and sealing the cheese),
and labeler. The main duties of the wholesale department were to cut cheese
into specified quantities and sizes according to orders.The cheese was then packaged and sealed,
labeled, and boxed for shipping.Catlin
was initially hired as a cheese cutter, but was later promoted to department
head of the four-person department.

¶7A typical day for Catlin started with her making calculations
concerning the weight of the different cheeses that had to be cut, based on the
orders.This took about an hour.Next, she made up labels and put them on the
boxes that the orders went into.She
would pull the boxes from the back, make the boxes up and put the labels on
them.Meanwhile, the cutter would be
cutting the cheese and placing it on the table.After the cheese was placed on the table, it was bagged and cryovaced.The cheese was bagged, sealed, and put in a
basket.The basket then had to be
dipped in a pot of hot water.The
packages of cheese were then dried off and labeled, weighed on a scale, priced,
and boxed.

¶8All four workers in Crystal Lake's wholesale department were
cross-trained in all four positions within the department, and all were capable
of assisting one another when an employee fell behind or when the department
was busier than usual.As the
department head, Catlin was required to gather orders and create an order list
specifying the sizes and types of cheese that needed to be cut for that
day.In addition to other
administrative duties, Catlin was required to weigh, label, and box the
cheese.She would also price boxes and
packages, assist in the assembling of boxes, place the packages on pallets, and
move them into the cooler for pickup.Catlin also assisted the other members of her department with their
duties, as needed, to help control the flow of work.

¶9In November 1996 Catlin was involved in a non-work related automobile
accident that left her a quadriplegic, though she eventually regained partial
use of both of her arms.She is now
required to use a wheelchair to move around.During her hospitalization and ensuing rehabilitation period, Catlin
filed for and received full disability benefits.

¶10In September 1997 Catlin decided that she was ready to return to
work, so she contacted Tony Curella (Curella), the president of Crystal Lake,
to inquire about the circumstances of her resuming her position as department
head.Crystal Lake subsequently hired
David Johnson (Johnson), a management consultant of Genex Services, to
determine what types of accommodations would be needed in order to allow a
person confined to a wheelchair to perform the duties Catlin's position
required.Curella had told Johnson that
the department head had to be able to perform all of the functions in the
wholesale department.Also, no one from
Crystal Lake ever gave Johnson any information about Catlin, other than that
she used a wheelchair.Ultimately,
Johnson found that Catlin could not have been reasonably accommodated, as a
person with Catlin's disability would be unable to perform all the tasks
required of her as the department head (i.e., she was unable to perform
all the functions of all four positions in the wholesale department).More specifically, Johnson noted that Catlin
would have difficulty pulling and stocking inventory because of weight and the
height of the storage area——up to seven feet above the floor.Crystal Lake therefore concluded, based on
the report from Johnson, that it could make no reasonable accommodations for
Catlin.

¶11In October 1999 Catlin asked Crystal Lake to reconsider its
decision, and in the meantime, she hired her own expert, Jeffery Annis (Annis)
of the UW-Stout Assistive Technology and Assessment Center, to determine the
feasibility of her returning to work as department head. At the time of this
assessment, the wholesale department had been eliminated and Catlin's job no
longer existed.Regardless, the
assessment initiated by Catlin found that Catlin could have been accommodated,
if certain physical changes had been made in the workplace, and if her job had
been modified so that she would not have been required to perform those
physical aspects of her job that she was no longer able to perform.

¶12Like Johnson, Annis found that Catlin would be unable to perform
some of the duties of her position that required climbing, lifting, or
performance in a standing position.For
example, she could not lift 40-pound blocks of cheese or reach cheese stored on
a high shelf.Nevertheless, the
assessment stated that she was still capable of performing most of her
job-related duties.Due to the
inability to modify some of the above job duties, the assessment suggested that
an easier way to accommodate Catlin would be to make her job more clerical, and
eliminate many of the physical duties.The assessment recommended that Catlin's job duties be modified so that
as a lead person she need do only the paperwork and final packaging, along with
filling out invoices, receipts, and packing lists.Both before Catlin's accident and at the time she attempted to
return to work, her mother and her sister were employed in the wholesale
department as part of the same team that Catlin led.

¶13When Catlin realized that she would not be allowed to resume her
position as the department head at Crystal Lake Cheese Factory, she filed a
charge of disability discrimination with the United States Equal Employment
Opportunity Commission, and the charge wascross-filed with the Equal Rights Division of the Wisconsin Department
of Workforce Development.This occurred
in March of 1998.Catlin alleged that
Crystal Lake violated the WFEA by terminating her employment, and by refusing
to permit her to return to work because of her disability. The federal filing
was subsequently dismissed by notice sent on April 27, 1998.

II.
PROCEDURAL BACKGROUND

A. Administrative Law Judge's
Decision

¶14An Equal Rights Division hearing was held before the ALJ on
January 25, 2000.At the hearing,
Phillip Robertson, Crystal Lake's operations manager, testified to some of the
costs in modifying the factory to accommodate Catlin.Crystal Lake asserted that these costs were unreasonable.In October 2000 Olstad determined that
Crystal Lake had not discriminated against Catlin in refusing to allow her to
return to work following her automobile accident.He found there were no reasonable accommodations that Crystal
Lake could have made, without imposing on it a hardship.Consequently, Olstad determined that Crystal
Lake had not violated the WFEA.

B. Labor and Industry Review
Commission's Decision

¶15Catlin appealed the ALJ decision to LIRC.In July 2001 LIRC reviewed the case and
reversed the ALJ's ruling.LIRC did not
consult with the ALJ regarding the credibility of the witnesses because LIRC
believed that its reversal of the examiner's decision was not based upon any
differing assessment of witness credibility. It found that Crystal Lake could
have made reasonable accommodations in the factory and modifications to
Catlin's duties that would have allowed Catlin to return to work as the
department head.LIRC found that as of
the day that Catlin sought reinstatement she was physically able to perform
most of the jobs in the wholesale packing department; LIRC, Fair Employment
Decision, Finding 14, p. 3 (May 5, 2000), but that she could not perform some
of the heaviest physical tasks. Id., Finding 15, p. 4.More specifically, LIRC found that Crystal
Lake could have altered Catlin's job duties and exempted her from certain
activities that she was no longer physically capable of performing, and that
doing so was well within the bounds of reasonable accommodation.LIRC determined that the refusal to modify
Catlin's job duties to exempt her from performing the heavier physical tasks,
constituted a denial of a reasonable accommodation that Crystal Lake could have
provided without hardship. Id., Finding 16, p.4.In a memorandum opinion explaining its
findings, LIRC stated in part: LIRC has "previously found that it is
reasonable to require an employer to restructure the physical demands of the
job in order to accommodate a disabled employee, provided this can be achieved
without hardship to the employer."Fields v. Cardinal TG Co., ERD Case No. 1997-02574 (LIRC, Feb.
16, 2001).

¶16LIRC also found that, in order to perform her job duties, Catlin
needed some physical modifications to the workplace.LIRC, Fair Employment Decision, Findings 17-18, pp. 4-5 (May 5,
2000). LIRC determined that Crystal Lake's refusal to make physical modifications
also constituted denial of a reasonable accommodation that Crystal Lake could
have provided without hardship.Id.,
Finding19, p. 5.Furthermore, LIRC found that at the time
Catlin sought to return to work she did not even need an accessible bathroom.[5]Thus, the cost of putting in an accessible
bathroom, even if it was $47,000 as the employer claimed, was not a basis upon
which Catlin could lawfully be denied reinstatement.LIRC ordered Crystal Lake to reinstate Catlin, provide "make
whole" remedies[6]
to her, and pay reasonable attorney's fees and costs.

C. The
Circuit Court Decision

¶17On August 16, 2001, Crystal Lake filed for judicial review of
LIRC's decision, and onFebruary 7,
2002, the circuit court affirmed LIRC's decision.It found that LIRC had reasonably interpreted the WFEA, and that
there was substantial and credible evidence in the record to support LIRC's
findings.

¶19Applying the great weight standard of review, the court of
appeals concluded that LIRC's interpretation of
Wis. Stat. § 111.34(1)(b) was acceptable when it found that
Crystal Lake's refusal to modify Catlin's duties to exempt her from the
heaviest physical tasks constituted a denial of reasonable accommodation.The court of appeals concluded that LIRC
reasonably interpreted the reasonable accommodation provision of the WFEA to
mean that an employer may be required to modify some job responsibilities of a
disabled employee who can perform some or most (but not all) job-related
functions, unless the employer can show that such modifications would cause a
hardship.

¶20The court of appeals found that Crystal Lake had presented no
evidence showing that accommodating Catlin's disability would create a
hardship.The court of appeals also
concluded that LIRC did not deny Crystal Lake due process when it rejected some
of the ALJ's factual findings and failed to consult with him.Finally, the court of appeals declined to
remand the case in order to give Crystal Lake the opportunity to show hardship.

¶21Crystal Lake petitioned for review of the decision of the court
of appeals and we granted review on February 19, 2003.

III. ISSUES

¶22As noted, we are presented with the following issues:
(1) whether LIRC reasonably interpreted Wis. Stat.
§ 111.34(1)(b) and Wis. Stat. § 111.34(2)(a) of the WFEA
when it found that there was a reasonable accommodation Crystal Lake could have
provided its former employee, Catlin, without hardship; (2) whether
Crystal Lake was denied due process by LIRC's failure to consult with the
administrative law judge; (3) whether there was substantial and credible
evidence to support the factual findings made by LIRC, upon which it based its
decision that there was a reasonable accommodation Crystal Lake could have
provided Catlin, without hardship within the provisions of Wis. Stat. § 111.34(1)(b)
and § 111.34(2)(a).

IV.
STANDARD OF REVIEW

¶23Crystal Lake argues that a de novo standard of review is
appropriate for LIRC's decision.In
support of the de novo standard, Crystal Lake contends that the issue of
whether reasonable accommodation under the WFEA includes a duty to create a new
job for a disabled employee is one of first-impression for LIRC.Alternatively, Crystal Lake argues that
LIRC's decision in this case is inconsistent with its previous decisions on
other matters.Accordingly, based on Kannenberg
v. LIRC, Crystal Lake maintains that if an issue is one of first-impression
before the agency, or the agency's position is inconsistent with other
decisions on the matter, de novo is the appropriate standard of review. Kannenberg v. LIRC, 213
Wis. 2d 373, 385-86, 571 N.W.2d 165 (Ct. App. 1997).Crystal Lake also maintains that LIRC's
interpretation is in direct conflict with decisions from the Wisconsin
Personnel Commission and federal courts interpreting analogous federal
anti-discrimination laws.

¶24The respondents, LIRC and Catlin,[7]
disagree and argue that LIRC's determination that Crystal Lake could have made
reasonable accommodations that would have allowed Catlin to continue working as
the department head, is entitled to "great weight" deference, and
must be affirmed if it is reasonable and not contrary to the clear meaning of
the statute.SeeTarget
Stores v. LIRC, 217 Wis. 2d 1, 13-14, 576 N.W.2d 545 (Ct. App.
1998).This is true even if the court
were to conclude that another interpretation was more reasonable.Seeid.

¶25Catlin argues that if LIRC's interpretation is reasonable, then
the reviewing court must affirm its decision under the great weight standard of
review.In support of this argument
Catlin maintains that the weight and credibility of the evidence are matters
for the agency, and not for the reviewing court, to evaluate. SeeBucyrus-Erie
Co. v. ILHR Dep't., 90 Wis. 2d 408, 418, 280 N.W.2d 142 (1979);
Wis. Stat. § 227.57(6).Even when more than one inference can reasonably be drawn, the finding
of the agency is conclusive. SeeVocational Tech. & Adult Educ.
Dist. 13 v. ILHR Dep't., 76 Wis. 2d 230, 240, 251 N.W.2d 41
(1977).

¶26Moreover, Catlin argues that if an agency's decision depends on
any fact found by the agency, the court shall not substitute its own judgment
as to the weight of the evidence of any finding of fact for that of the
agency.Wis. Stat. § 227.57(6).Additionally, relying on Wis. Stat. § 227.57(10),[8]
Catlin argues that great weight shall be accorded the experience, technical
competence, and specialized knowledge of the agency involved.

¶27According to Wis. Stat. § 227.57(6),[9]
LIRC's decision may be reviewed by a court and will only be set aside or
remanded to the agency "if [the court] finds that the agency's action
depends on any finding of fact that is not supported by substantial evidence in
the record.""Substantial
evidence does not mean a preponderance of the evidence.Rather, the test is whether, taking into
account all the evidence in the record, 'reasonable minds could arrive at the
same conclusion as the agency.'"Madison
Gas & Elec. Co. v. Public Serv. Comm'n, 109 Wis. 2d 127, 133,
325 N.W.2d 339 (1982) (citing Sanitary Transfer & Landfill, Inc. v.
DNR, 85 Wis. 2d 1, 15, 270 N.W.2d 144 (1978)). The reviewing court may not substitute its
judgment for that of an agency in a contested case as to the weight of evidence
on any disputed finding of fact.

¶28A reviewing court must first determine what level of deference
to accord an agency decision.If the
agency's determination is entitled to great weight, a court will sustain it
unless it directly contravenes a statute, is clearly contrary to legislative
intent, or lacks a rational basis.Harnischfeger
Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995).Here, any decision made by LIRC will be
given great weight due to the agency's knowledge and experience in application
of Wis. Stat. § 111.34.Target,
217 Wis. 2d at 13.

¶29In Target the court of appeals determined that LIRC's
interpretation of reasonable accommodation should be given great weight.Id.The court stated that "[w]e give LIRC's interpretation of a statute
varying degrees of deference depending on its obligations with respect to
administering the statute, its experience in doing so, and the nature of the
determinations."Id.The court then went on to explain why it
concluded great weight should be given to LIRC's interpretation of reasonable
accommodation:

First, LIRC is charged with adjudicating appeals from
the hearing examiner's decision on complaints under the WFEA, § 111.39(5),
Stats., which includes complaints under § 111.322, Stats., for handicap
discrimination.Second, § 111.34(1),
Stats., was enacted in 1981 and LIRC has developed experience and expertise in
interpreting this section. . . . Third, by according great deference to these determinations, we
will promote greater uniformity and consistency than if we did not do so.Fourth, this determination is intertwined
with factual determinations, seeMcMullen v. LIRC, 148 Wis. 2d
270, 276, 434 N.W.2d 830, 833 (Ct. App. 1988) (what is reasonable accommodation
depends on the facts in each case).Fifth, this determination involves value and policy judgments about the
obligations of employers and employees when an employee, or prospective
employee, has a handicap.See Kannenberg,
213 Wis. 2d at 385, 571 N.W.2d at 171.

Id., (some citations
omitted).

¶30We agree with the standard of review set forth in Target,
and hold that LIRC's interpretations, including its determination of reasonable
accommodation in this case, should be given "great weight" deference.[10]In doing so, we reject Crystal Lake's
contention that the issue was one of first impression, or that its position is
inconsistent with other decisions on the matter.LIRC has had many opportunities to address this issue of what
reasonable accommodation is under the WFEA."Under the great weight standard of review, we uphold LIRC's
interpretation of the statute if it is reasonable and not contrary to the clear
meaning of the statute, even if we conclude that another interpretation is more
reasonable."Id. at 13-14.

(1) Employment discrimination because of disability
includes, but is not limited to:

. . . .

(b) Refusing to reasonably accommodate an employee's or
prospective employee's disability unless the employer can demonstrate that the
accommodation would pose a hardship on the employer's program, enterprise or
business.

(2)(a) Notwithstanding s. 111.322, it is not employment
discrimination because of disability to refuse to hire, employ, admit or
license any individual, to bar or terminate from employment, membership or
licensure any individual, or to discriminate against any individual in
promotion, compensation or in terms, conditions or privileges of employment if
the disability is reasonably related to the individual's ability to adequately
undertake the job-related responsibilities of that individual's employment,
membership or licensure.

¶32The statutory language of Wis. Stat. § 111.34
requires that an employer must show the individual's disability "is
reasonably related to the individual's ability to adequately undertake the
job-related responsibilities of that individual's employment . . . ."
Wis. Stat. § 111.34(2)(a).However, an employer violates the WFEA if it refuses to reasonably
accommodate an employee's disability without demonstrating that the accommodation
would be a hardship on it.Wis. Stat. § 111.34(1)(b).Taken together, § 111.34(1)(b) and (2)(a) require an
employer to prove that even with reasonable accommodations, the employee would
not be able to perform his or her job responsibilities adequately or that,
where reasonable accommodations would enable the employee to do the job,
hardship would be placed on the employer.Target, 217 Wis. 2d at 17.

A. Arguments

¶33Crystal Lake argues that LIRC's interpretation of reasonable
accommodation under the WFEA is unreasonable and erroneous.The WFEA does not define reasonable
accommodation or the extent to which an accommodation may be required for a
disabled employee.Moreover, Crystal
Lake contends that there is little guidance from Wisconsin's appellate courts
regarding the scope of reasonable accommodation under the WFEA.Seeid. at 17.Relying on Target,[11]
Crystal Lake argues that eliminating the duties of an employee's position is
not an accommodation that enables the disabled employee to "adequately
undertake job-related responsibilities" of her employment.

¶34Crystal Lake maintains that neither LIRC, nor Catlin's expert,
suggests that there is any such accommodation that would have allowed Catlin to
do her job.Instead, Crystal Lake
claims that LIRC required Crystal Lake to excuse Catlin from those duties she
could no longer perform, essentially creating a new job.Under the statutory language of the WFEA,
Crystal Lake argues that an employee must be able to "adequately undertake
the job-related responsibilities of [the] individual's employment. . . . "Wis. Stat. § 111.34(2)(a).

¶35Next, Crystal Lake argues that the legislature's use of the
definite article, "the" in Wis. Stat. § 111.34(2)(a),
without modification, can only be reasonably interpreted to mean all of the
functions that make up the job.The use
of the article "the," Crystal Lake contends, is contrary to the
interpretation adopted by the court of appeals in this case, where the court
found that as long as the employee could perform "some" of the
job-related responsibilities, the employer is obligated reasonably to
accommodate the employee by eliminating those tasks which the employee can no
longer do.Crystal Lake Cheese
Factory v. LIRC, 2002 WI App 290, ¶26, 28-29, 258 Wis. 2d 414, 654
N.W.2d 286.

¶36Crystal Lake contends that this court should look to analogous
federal statutes and the Wisconsin Personnel Commission in interpreting
reasonable accommodation, even though neither the court, nor LIRC, is bound by
those decisions in interpreting Wis. Stat. § 111.34(1)(b) and
(2)(a).SeeTarget, 217
Wis. 2d at 18-19; Kannenberg, 213 Wis. 2d at 387.In support of its argument, Crystal Lake
points out that federal courts have routinely held that reasonable
accommodation does not require an employer to eliminate job duties, create a
new job, or employ others to perform functions that a disabled employee cannot
perform.Peters v. City of Mauston,
311 F.3d 835, 845-846 (7th Cir. 2002); Watson v. Lithonia Lighting, 304
F.3d 749, 752 (7th Cir. 2002).Consequently,
Crystal Lake asks us to find that the WFEA's reasonable accommodation provision
does not require an employer to create a new position for a disabled employee.

¶37Catlin disagrees and argues that the court should not read federal
legislation into the intent of Wisconsin's legislators.Instead, Catlin maintains that the WFEA
should be interpreted in accordance with "our legislature's intention
rather than with the intention of other jurisdictions."McMullen v. LIRC, 148 Wis. 2d 270,
275-76, 434 N.W.2d 830, 833 (Ct. App. 1988).Wisconsin has determined that while federal and other states' cases
applying similar legislation may be enlightening to the WFEA cases, they are
not binding upon Wisconsin courts.Id.Thus, Catlin argues that while this court
may consider how federal courts have dealt with the question of reasonable
accommodation under the Americans with Disability Act (ADA), since the WFEA is
similar, but not identical, guidance is limited as to the determination of what
is reasonable under the WFEA.In
support of its position, Catlin argues that there are significant differences
in statutory language between the WFEA and the ADA.SeeMcMullen, 148 Wis. 2d at 275.Catlin points out that the ADA requires an
employer to make reasonable accommodations only to the disability of a
"qualified individual with a disability" and a "qualified
individual with a disability" is "an individual with a disability
who, with or without reasonable accommodation can perform the essential
functions of the employment position that such individual
holds . . . ." See 42 U.S.C §§ 12111(8)[12]
and 12112(5)(A).[13]The WFEA, Catlin contends, requires an
employer reasonably to accommodate an employee's disability, but an
"individual with a disability" is not limited to an individual who
can perform the "essential functions" of the employment position with
or without accommodation.See
Wis. Stat. §§ 111.32(8)[14]
and 111.34(1)(b).

¶38Moreover, Catlin argues that under the ADA analysis, it is not
even clear that the tasks that Catlin could no longer perform were considered
essential functions of her position.Catlin points out that as the department head, her primary
responsibility was to process orders and do inventory sheets——tasks which she
could still perform.Furthermore,
Catlin asserts that Crystal Lake has offered no case law, under the ADA, that
says an individual must be able to perform all functions of four different
positions, or they will not be considered a qualified individual with a
disability entitled to protections under the law.

¶39Catlin argues that even if the ADA is considered when applying
the WFEA, it makes no difference since the ADA requires an employer to engage
in an interactive process with an employee to determine a reasonable
accommodation, and that in the present case, no such process was undertaken.

To determine the appropriate reasonable accommodation
it may be necessary for the covered entity to initiate an informal interactive
process with the qualified individual with a disability in need of the accommodation.This process should identify the precise
limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.

29 C.F.R. § 1630.2(o)(3) 1995.[15]Again, no such interactive process took
place here.Catlin points out that
Crystal Lake never inquired of her as to what accommodations she needed.Catlin argues that this failure violated the
intent of the WFEA as well.Furthermore, Catlin argues that under the ADA, determining whether a
function is essential includes determining whether removing the function would
fundamentally alter that position if the position exists to perform a particular
function, if there are other employees available to perform that function, and
the amount of time spent performing the function.Americans With Disabilities Act Handbook, p. I-38, U.S.
Equal Employment Opportunity Commission and U.S. Department of Justice
(1992).Even under this analysis,
Catlin contends, it is not clear whether the few tasks Catlin was no longer
able to do, even with accommodations, qualified as essential functions or
marginal functions.Her position was
not the cutter position nor was it the cryovacer position.

¶40Crystal Lake argues that all Catlin's job functions were
essential, and that not only is Catlin required to perform all the functions of
her position, but it is also essential that she be able to perform all the
functions of all the other employees in the department, no matter what their
primary role is.Catlin argues that
Crystal Lake's comment that nothing in the WFEA's legislative history
"suggests an intent to construe the duty of 'reasonable accommodation'
differently than under the ADA" is similarly unpersuasive, given that the
WFEA's disability provisions predate the ADA by almost ten years.

¶41In summary, Catlin argues that Crystal Lake is inappropriately
attempting to move this case from the protections of the WFEA, and instead
apply an analysis used under the ADA.The ADA distinguishes between essential and marginal functions, but the
term "essential functions" has no particular meaning under the
WFEA.Target, 217 Wis. 2d at
16-17 n.9.

¶42Under the WFEA a complainant must first show that he or she is
an "individual with a disability" within the meaning of
Wis. Stat. § 111.32(8), and that the employer took one of the
actions enumerated in Wis. Stat. § 111.322.[16]Target, 217 Wis. 2d at
9.

¶43Once a disability has been proven by the employee, the burden
then shifts to the employer to prove a defense under
Wis. Stat. § 111.34.Id.

¶44In this case, there is no dispute among the parties that Catlin
was disabled within the meaning of the WFEA, or that she was not allowed to
return to work because of her disability.Also, it is uncontested that Catlin's disability was reasonably related
to her adequately performing her job responsibilities, unless reasonable
accommodations were made.The question
remains whether, with reasonable accommodations Catlin must then be able to
perform all of the job-related responsibilities adequately.Also left in question is whether or not
there was a reasonable accommodation that Crystal Lake could have provided
Catlin without hardship.Under LIRC's
interpretation of "reasonable accommodation," it found that Crystal
Lake could have modified Catlin's job duties to accommodate her
disability.Catlin contends that a
reviewing court may not make an independent determination of the facts,[17]
and that the decision of LIRC should not be set aside unless it can be shown
that the decision was not supported by substantial evidence.Id. at 11 (citing Hamilton v. ILHR
Dept., 94 Wis. 2d 611, 617, 288 N.W.2d 857, 860 (1980)).
Crystal Lake, however, contends that this interpretation is unreasonable
because it is being forced to create a new job to accommodate a disabled
employee.

¶45LIRC determined that Crystal Lake should modify Catlin's job
duties and make physical modifications to the plant as a reasonable
accommodation.Crystal Lake argues
that, in this case, LIRC's interpretation of reasonable accommodation is
unreasonable.Under Crystal Lake's
alternate interpretation, an employer would only be required to assist an
employee with his or her job responsibilities if there is some reasonable
accommodation that will enable the employee to undertake all of his or her job
duties.Crystal Lake argues that an
employer would not berequired to
modify an employee's duties, or to exempt an employee from having to perform
certain duties.Crystal Lake relies
heavily on federal court decisions under the ADA in support of its
interpretation.The basis for using the
ADA in interpreting reasonable accommodation is, according to Crystal Lake, due
to the similarity in language and purpose of the federal statute to the
WFEA.Crystal Lake asserts that
physical modifications to the plant and/or modification to Catlin's duties
would have posed a hardship for the company.Catlin takes the position that Crystal Lake failed in meeting its burden
of proving hardship.

B. Analysis

¶46Though this court may look to federal law for guidance in
determining if LIRC's interpretation of "reasonable accommodation"
was reasonable, we are not bound by those cases in interpreting the WFEA.Id. at 18-19; McMullen, 148
Wis. 2d at 275-76.SeealsoAmerican Motors Corp. v. ILHR Dep't, 101
Wis. 2d 337, 353, 305 N.W.2d 62 (1981).The WFEA is a "remedial
statute . . . [and] should be broadly interpreted to
resolve the problem it was designed to address."McMullen, 148 Wis. 2d at 275.Also,

the statutory language and scheme contained in the
analogous . . . federal legislation differ[s], sometimes
significantly, from that found in sec. 111.34(1)(b). . . . Our [The Wisconsin] legislature has
established its own scheme for dealing with employment discrimination based on
handicap and has articulated the specific policy considerations underlying that
scheme.Therefore, we will construe
sec. 111.34(1)(b) in accordance with our legislature's intention rather than
with the intention of other jurisdictions.

McMullen, 148
Wis. 2d at 275-276.Clearly,
this court isnot bound by federal law
in determining whether LIRC's interpretation of "reasonable
accommodation" was appropriate.

¶47The court of appeals has previously addressed the issue of
interpretation of reasonable accommodation in both Target and McMullen.In each case, the court of appeals held that
a reasonable accommodation was not limited to only anaccommodation that would permit the employee to perform all of
his or her job responsibilities.

¶48In Target, the court upheld a decision by LIRC to
"temporarily refrain from enforcing a disciplinary rule" against an employee
as a reasonable accommodation.Target,
217 Wis. 2d at 18.The employee was
unable, due to sleep apnea, to stay awake at times while performing her job
duties.Id. at 5-6.LIRC determined that it was unreasonable to
fire the employee without allowing time to see if treatment of the condition
would correct the problem.Id.
at 8-9.The employee's sleep apnea was
reasonably related to her ability to perform adequately her job
responsibilities.However, the court
upheld LIRC's decision as a reasonable accommodation, even though it did not
immediately allow her to perform adequately her job duties.Id. at 16-18.

¶49Similarly, in McMullen, the court of appeals required an
employer to transfer an employee to a different position as a reasonable
accommodation of the employee's disability.The court held that a "'reasonable accommodation' may include a
transfer of a handicapped employee to another position for which he is
qualified, depending on the facts of each individual case." McMullen, 148 Wis. 2d at 271.This accommodation also did not allow the
employee to perform his current job duties, but instead placed him in a job
better suited to his current abilities.It was essentially a change or modification in the employee's job-related
responsibilities.

¶50In Frito Lay, Inc. v. LIRC, despite the fact that it was
decided before the legislature added the reasonable accommodation requirement
to the WFEA, the court of appeals held that arrangements made among other
employees to accommodate one employee's disability, negated the employer's
claim of an exception to the law against employment discrimination based on
disability.Frito Lay, Inc. v. LIRC,
95 Wis. 2d 395, 407-08, 290 N.W.2d 551 (Ct. App. 1980).In that case, Frito Lay employed drivers,
including the complainant, to make both interstate and intrastate deliveries
from its warehouse in Beloit.Id.
at 399.The complainant was a truck
driver whose lack of visual acuity barred him because Wisconsin and Federal
requirements differed for interstate, but not intrastate deliveries.Id.Delivery runs were allocated based on seniority, and all drivers senior
to the complainant agreed to ensure that he had only intrastate runs.Id.The court held that this accommodation did not allow the employer to
discharge the complainant for failing to meet the federal (interstate) vision
requirements.Id. at 408.

¶51In this case, at least two of the three other employees in
Catlin's department agreed that it would be feasible for them to accommodate a
change in Catlin's duties because of her disability.This further supports the reasonableness, under Frito Lay
and the current WFEA, of such a job modification.[18]

¶52Based on the prior decisions in Target, McMullen,
and Frito Lay, we hold that LIRC's interpretation of "reasonable
accommodation" is not unreasonable, but rather is a reasonable one.A reasonable accommodation is not limited to
that which would allow the employee to perform adequately all of his or her job
duties.A change in job duties may be a
reasonable accommodation in a given circumstance.SeeTarget, 217 Wis. 2d 1; McMullen,
148 Wis. 2d 270.As we have determined
LIRC's interpretation to be reasonable, under the "great weight"
standard of review, we must, therefore, defer to LIRC's conclusion.[19]

¶53While we are satisfied that LIRC's finding of no hardship also
deserves great weight deference, and is correct, we reserve a thorough
discussion of the hardship issue for our review of issue three.

VI.
ISSUE TWO——DUE PROCESS

¶54Crystal Lake argues that it was denied due process when LIRC
rejected the hearsay testimony of Phillip Robertson, regarding the cost of
constructing a wheelchair accessible bathroom.Crystal Lake contends that LIRC should have consulted with the ALJ
regarding Robertson's credibility.Catlin, however, argues that Crystal Lake was not denied due process by
LIRC's failure to consult with the ALJ regarding credibility issues, since
LIRC's decision did not depend on the credibility of the witness.Because credibility was not the basis upon
which the commission's decision hinged, the commission and the examiner were
not required to consult.Rather, the
testimony of Robertson was dismissed because it was uncorroborated hearsay.Catlin, therefore, asserts that LIRC was
correct to reject the finding of the ALJ, since crucial findings cannot be
based on hearsay testimony alone.Village
of Menomonee Falls v. DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct. App.
1987).

¶55In support of her position, Catlin points out LIRC reached its
decision because of its interpretation of how
Wis. Stat. § 111.34 should be applied to the case, and that
credibility was not a factor in reaching that decision.Crystal Lake had an opportunity to present
its argument at the hearing and the ALJ ruled in its favor.Catlin argues that the fact that LIRC
reached a result different than the ALJ does not mean that Crystal Lake's due
process rights were violated.Simply
put, there were reasonable alternative conclusions one could draw from the
testimony and LIRC chose one that was different than the ALJ's. Consequently,
Crystal Lake's due process rights were not violated by LIRC's decision.

¶56Crystal Lake maintains that it was denied due process not only
when LIRC failed to confer with the ALJ on issues of credibility, but when LIRC
rejected evidence that was admitted without objection at the hearing. More
specifically, Crystal Lake points out that while the ALJ determined that Catlin
had to regularly perform the functions of the other positions in the
department, LIRC determined the opposite without ever conferring with the
ALJ.Crystal Lake argues that due
process would have required LIRC to confer with the ALJ before reversing the
ALJ's determination.

¶57Essentially, Crystal Lake argues that LIRC's failure to consult
with the ALJ prior to reversing the decision, as well as its rejection of
Robertson's testimony on hearsay grounds, constituted a denial of due process
and ultimately led to LIRC's finding that there was a reasonable accommodation
that Crystal Lake could have provided without hardship.

¶58Catlin argues that the LIRC decision did not depend on the
credibility of witness testimony, but rather that LIRC interpreted the testimony
in a different way.For example, rather
than accepting the ALJ's determination that Catlin regularly assisted others in
the wholesale department, LIRC only noted that the record did not indicate the
"frequency" with which she assisted the other workers.Catlin argues that there were reasonable
alternative conclusions one could draw from the same testimony, and just
because LIRC happened to reach a conclusion that was different from the ALJ,
and against Crystal Lakes' interest, does not imply that Crystal Lakes' due
process rights were violated.

¶59Essentially, Catlin argues that LIRC reached its decision
because of its interpretation of how Wis. Stat. § 111.34 should
be applied to the case, and that credibility was not a factor in reaching that
decision.As a result, LIRC did not
violate Crystal Lake's due process rights.

¶60We agree and hold that Crystal Lake was not denied due process
by LIRC's failure to consult with the ALJ regarding credibility since LIRC's
findings were not based upon the credibility of the operation manager's
testimony.Rather, LIRC reached its
decision because of its interpretation of how
Wis. Stat. § 111.34 should be applied to this case.Put differently, the facts of the case and LIRC's
interpretation of the statute were the real reasons for LIRC's decision.Thus, we hold that since LIRC's decision did
not hinge upon witness credibility,[20]
LIRC was not required to consult with the ALJ and, therefore, Crystal Lake was
not denied due process.

¶61Crystal Lake argues that LIRC's factual findings lacked
evidentiary support in the record.In
holding that Crystal Lake could have accommodated Catlin without hardship, LIRC
found that Catlin could still perform most of her duties.Crystal Lake counters that this finding is
against the evidence in the record.It
maintains its position that Catlin regularly performed several activities,
which LIRC found Catlin did only infrequently.Crystal Lake maintains that it is critical that Catlin should be able to
perform not only her regular tasks, but all tasks for all positions in the
department.

¶62Additionally, Crystal Lake asserts that the record does not
support LIRC's finding that neither physical modifications to the plant, nor
modifications to Catlin's duties, would have posed a hardship to the
company.It points to the $47,000
estimate for a wheelchair-accessible restroom, as well as the other plant
modifications, as proof of hardship.Crystal Lake points out that the court of appeals acknowledged that
modifying Catlin's duties may lead to production slowdowns.Crystal Lake disagrees, however, with the
court of appeals that Crystal Lake fell short of proving hardship when it
failed to go further and ensure there was evidence in the record of the
consequences of such slowdowns.

¶63Catlin maintains that LIRC, in this instance, has determined
that there was substantial evidence to support its determination that
reasonable accommodations were appropriate for Crystal Lake to make.LIRC found that Catlin could perform most of
her duties, and that the duties Crystal Lake argues Catlin could not perform
were not her regular responsibilities. Under LIRC's interpretation of the
statutes, as long as Catlin could perform some of her duties, which the record
indicated she could, then there were reasonable accommodations that could and
should have been made.Catlin felt that
she would be able to perform most tasks that were part of her job with little
or no accommodation.

¶64Catlin asserts that Crystal Lake had no knowledge regarding what
duties she was capable of performing, and never asked her what accommodations
she thought she might need.Catlin
contends that the WFEA has been found to include a duty to gather sufficient
information from the employee and from qualified experts, as needed, to
determine what accommodations are necessary.Keller v. UW-Milwaukee, No. 90-0140-PC-ER, (Mar. 19, 1993).Catlin argues that Crystal Lake failed to
satisfy this duty.Crystal Lake was
aware that Catlin had a disability and would require some sort of
accommodation, but never approached her to inquire about what job duties she
was capable of performing.Additionally, Catlin contends that Crystal Lake did not look at the
possibility of transferring her to another position if it felt she could not
adequately perform her job.She argues
that such a transfer may also be a reasonable accommodation under the WFEA.Wis. Stat. § 111.34(1)(b).

¶65She argues that with minor changes to the building and some
assistive technology, she could have performed her job.Catlin asserts, and the Annis assessment
points out, the easiest way to accommodate Catlin would have been to modify her
job duties so that Catlin did not have to perform the more physically demanding
tasks.Everyone in the department was
cross-trained, and at least two of the three other team members acknowledged
that they could make up for Catlin's restricted duties.

¶66Based on the evidence contained in the record, Catlin argues
that there was clearly a sufficient amount of credible evidence to support the
findings of LIRC.

¶67The complainant in a disability discrimination, under the WFEA,
must show that:(1) he or she is
handicapped under WFEA, and (2) that the employer has taken one of the
enumerated, proscribed actions under the WFEA.Target, 217 Wis. 2d at 9.Once the complainant has made these two showings, the employer
may proffer a defense that the accommodations named by the complainant would
impose a hardship on the employer.Id.In such a case the employer has the burden
of proving that hardship.Id. at
9-10.If the employer fails to prove
this defense, it is in violation of WFEA.

A. Wisconsin Stat. § 111.34(1)(B)
Hardship

¶68Although Crystal Lake argues that reasonably accommodating
Catlin would have resulted in a hardship for it, Catlin argues that Crystal
Lake did not meet its burden of proving hardship pursuant to
Wis. Stat. § 111.34(1)(b), nor did it meet its burden under
Wis. Stat. § 111.34(2)(a).Target, 217 Wis. 2d at 10.

[I]f an employer refuses to reasonably accommodate an
employee's (or prospective employee's) handicapand is unable to demonstrate that the accommodation would pose a
hardship, then the employer violates the WFEA.Wis. Stat. § 111.34(1)(b).Reading the two paragraphs of § 111.34 together, once the
employee has met the first two showings, the employer must show either that a
reasonable accommodation would impose a hardship——§ 111.34(1)(b), or that,
even with a reasonable accommodation, the employee cannot "adequately
undertake the job-related responsibilities"——§ 111.34(2)(a).

Id.

¶69In support of her argument, Catlin points out that Crystal Lake
did not offer any evidence showing that accommodating her would be a hardship
for it.More specifically, Catlin
points out that Crystal Lake offered no evidence showing that by exempting her
from duties she could not perform it would suffer a hardship.Moreover, Catlin contends that Crystal Lake
did not even explore accommodations it could have made for her, let alone show
that any particular accommodation would impose a hardship upon it.Catlin states that the owner of Crystal Lake
Cheese Factory, Curella, admitted as much in his testimony.Curella testified that he "didn't make
any effort whatsoever for what might be appropriate accommodations for [Catlin]
to return to work . . . ." (R. 14:4).

¶70Furthermore, Catlin argues that restructuring her job duties
would not have imposed a hardship on Crystal Lake since everyone in the
four-person department was cross-trained in all tasks in the department, and
that other members of the department were willing to perform the heavy physical
tasks that Catlin could not do.The
other department members did not object even if this meant they would get a
disproportionate share of those duties.As noted previously, the other team members included Catlin's sister who
already had the heaviest job as cutter, and Catlin's mother.Both of them were willing to perform the
heavy physical tasks that Catlin could not do.LIRC found Crystal Lake could have accommodated Catlin without hardship
by exempting her from performing the heavy physical tasks that were beyond her
capabilities, and by making some physical modifications to the workplace.LIRC, Fair Employment Decision, Findings 16,
19, p. 4-5 (May 5, 2000).

¶71In regard to the hearsay testimony that a new wheelchair
accessible bathroom would cost $47,000, Catlin contends that Crystal Lake
provided no documentation to support this figure.Moreover, Catlin argues that there was no evidence as to what
Crystal Lake's financial resources were like.As a result, Catlin argues that it is possible that the $47,000 may not
have been a significant cost for Crystal Lake, in relation to its financial
situation.There was no evidence
showing that Crystal Lake could not reasonably afford such an expense.While Crystal Lake argues that the alleged
cost of the new bathroom would be three times Catlin's wages, Catlin contends
that there is no legal basis for such an argument.Catlin points out that a new bathroom could be used by all
employees.As such, Catlin argues that
Crystal Lake failed to prove that accommodating her would impose a hardship on
it.

¶72Lastly, Catlin argues that the other necessary physical
modifications that would be needed in order to accommodate her were relatively
inexpensive.One modification included
addressing the three-inch threshold on the entry door, something she claims
could easily be remedied with a small ramp.Other modifications dealt with changes that could be made to the factory
such as the lowering of tables and other items, and, where necessary, the
widening of aisles.

¶73In summary, Catlin agues that Crystal Lake did not meet its
burden of proof that an accommodation would impose a hardship pursuant to
Wis. Stat. § 111.43(1)(b).

¶74In the present case, neither party disputes that Catlin is
handicapped or that Crystal Lake took termination action based on that
handicap.The issues, therefore, are
whether the record supports, with substantial and credible evidence, LIRC's
conclusion that reasonable accommodations were available to Crystal Lake,
accommodations that would allow Catlin to perform her job duties, and that Crystal
Lake has failed to demonstrate that those reasonable accommodations would
create a hardship for Crystal Lake.

B. Analysis

¶75In determining whether an employer is required, under the WFEA,
to accommodate a disabled employee, the questions of reasonableness of the
accommodation and hardship to the employee, while overlapping, are two
"separate and distinct considerations that are to be addressed
independently."McMullen,
148 Wis. 2d at 277.Thus, in examining
the record for evidence to support each, we will also treat the two as distinct
determinations.

¶76In this case there is substantial evidence in the record to
support LIRC's conclusion that, hardship notwithstanding, there were reasonable
accommodations Crystal Lake could have taken in order to keep Catlin as an
employee.Crystal Lake could have
modified the jobsite to allow Catlin full access, and let her continue to
perform those tasks she is still able to perform.Among the accommodations that could and should have been
considered: a ramp, installed at the entrance, would allow wheelchair access;
the tables and other fixtures could be lowered; the bathroom could be modified;
and, where necessary, aisles could be widened.

¶77When the state legislature modified the WFEA in 1981, it added
provisions that require employers dealing with handicapped employees or
applicants to evaluate the individual in order to determine whether he or she
can meet the requirements of the job in question.Wis. Stat. § 111.34.Crystal Lake in this case failed to investigate what Catlin
herself could still do despite her disability.Johnson, the job analysis evaluator from Genex, was told only that he
was to examine the job and job site with regard to a person in a
wheelchair.At no time did Crystal Lake
contact Catlin; in fact, there is evidence in the record that Crystal Lake
managers avoided her phone calls.This
failure by Crystal Lake appears to have been a violation of the intent of the
WFEA.

¶78Another way Crystal Lake could have accommodated Catlin's
disability is by modifying her responsibilities.This is an accommodation, we hold, that appears to be reasonable
under the circumstances here and within the purview of the WFEA.The other employees could divide among
themselves those physical tasks Catlin is now unable to do, and she could focus
just on the many job responsibilities that she can do.As noted, other employees have testified that
they would be willing and able to do this.

¶79Having found substantial and credible evidence in the record to
support LIRC's finding that Crystal Lake could have reasonably accommodated
Catlin, we now turn to the issue of hardship for Crystal Lake.As noted previously, we are satisfied that
LIRC's determinations are entitled to great weight deference on this issue as
well.Since Catlin has made the
required showings that she is handicapped and that the employer has taken a
proscribed action under the WFEA, the employer has the burden of showing
hardship.Target, 217
Wis. 2d at 9.

¶80As to physical and job modifications, Crystal Lake has failed in
its burden to prove hardship.Further,
we agree with the court of appeals that this matter should not be remanded to
allow Crystal Lake to attempt now to make a new showing of hardship.Crystal Lake chose to rely on what it argued
was an erroneous interpretation of the WFEA by LIRC.Failed trial strategy is not grounds for remand.SeeState v. McDonald, 50
Wis. 2d 534, 538, 184 N.W.2d 886, 888 (1971).

VIII.
CONCLUSION

¶81We affirm the decision of the court of appeals.Accordingly, we hold that requiring Crystal
Lake to modify the job duties of Susan Catlin and make physical modifications
to the workplace is not unreasonable and would be a reasonable
accommodation.With such
accommodations, she would have the ability to adequately undertake her
job-related responsibilities.

¶82Next, we hold that Crystal Lake was not denied due process when
LIRC, prior to reversing the ALJ's holding, failed to consult with the ALJ
regarding witness credibility issues.We hold that since LIRC's findings did not hinge on issues of
credibility, LIRC was not required to confer with the ALJ, and that there was,
therefore, no violation of Crystal Lake's due process rights.LIRC reached its decision here based on its
interpretation of the proper application of Wis. Stat. § 111.34
to the facts presented.

¶83Finally, we hold that there was substantial and credible
evidence in the record to justify LIRC's findings.There was substantial evidence to show that Crystal Lake could
have made reasonable accommodations for Catlin, and Crystal Lake has failed to
meet its burden of establishing that such reasonable accommodations for Catlin
would create hardship on it.

¶85By ruling in favor of Susan Catlin, the Labor and Industry
Review Commission (LIRC) incorrectly interpreted the Wisconsin Fair Employment
Act's (WFEA) ban on employment discrimination on the basis of disability.LIRC held that the WFEA requires an employer
to "accommodate" an applicant or employee that cannot perform all the
applicant or employee's necessary job responsibilities, even with reasonable
accommodations.I strongly disagree
with this interpretation of the WFEA and with the burden it imposes on
employers.

¶86Today, a majority of this court affirms this statutory
misinterpretation——made in the first instance by an administrative agency——and
adopts this erroneous approach as the law of this state.In the process, the court has taken from
Wisconsin employers the ability to define the required job duties of their
employees.This is a result altogether
unintended by the WFEA.

¶87I disagree with the majority in three primary respects.

¶88First, LIRC and its companion agency, the Wisconsin Personnel
Commission, have not consistently ruled that removing necessary elements of an
employee's job can be considered a reasonable accommodation under
Wis. Stat. § 111.34(1)(b) that is consistent with
§ 111.34(2)(a).Therefore, I would
grant only due weight deference to LIRC's interpretation of how § 111.34 governs
adverse employment actions taken against an employee or applicant that cannot
perform all the necessary functions of the job for which she applies or for
which she is already hired.

¶89Second, LIRC's interpretation of § 111.34 in this case is
manifestly less reasonable than a readily understandable alternative
meaning.Section 111.34(2)(a), even
when read in conjunction with § 111.34(1)(b), cannot be read to require
that an applicant or employee need only be able to perform "some" or
"most" of the basic responsibilities of the job that he or she fills
in order to compel an employer to hire or retain that person.Rather, the reasonable accommodations
contemplated by § 111.34 are those that assist the disabled employee's
ability to perform a preexisting job."The job" is defined by the basic duties that are incumbent
upon the employment.

¶90Finally, it was impermissible for LIRC to find unlawful
discrimination on the basis of factual conclusions that were inconsistent with
those reached by the administrative law judge (ALJ) without having first
conferred with the ALJ.LIRC's factual
findings regarding the nature of the job responsibilities that the complainant
could or could not perform after her accident were based predominantly on
testimony from the complainant herself and others.To declare that these findings are not based on credibility
assessments is astounding.

¶91For these reasons, I respectfully dissent.

I.
RESTATEMENT OF THE FACTS

¶92As an initial matter, I must highlight the central factual
matter at issue in this case: what responsibilities of Catlin's job could she
perform after an injury confined her to a wheelchair, and what duties could she
not perform, even with reasonable accommodations?

¶93Catlin's job was lead worker/supervisor of Crystal Lake Cheese
Factory's wholesale department.As the
supervisor of this four-person department, Catlin's job required her to perform
a variety of duties.

¶94The majority has adopted LIRC's findings as to Catlin's ability
to perform adequately "most" of her job duties following her
accident.LIRC concluded that, as of
the date she sought reinstatement, Catlin could (1) train employees; (2) make
boxes; (3) make labels; (4) bake cheese; (5) label cheese (if she used a
"reacher" to get at the labels); (6) weigh cheese; (7) price cheese;
(8) box cheese; (9) put the cheese on pallets; (10) do inventory and other
paperwork; and (11) clean up and wash equipment.Catlin's testimony during the hearings before the ALJ supports
LIRC's findings that Catlin could, as a purely quantitative matter, perform
these tasks.

¶95There also is a nontrivial number of duties that LIRC found——and
which Catlin has admitted——that she could not perform.Catlin could not perform "some" of
the heavier physical tasks, including (1) lifting 40-pound blocks of cheese;
(2) loading and unloading cheese onto hand carts and semi trucks; (3) reaching
boxes stacked high in the storeroom; (4) reaching cheese stacked high in the
cooler; (5) cutting cheese; and (6) placing the cheese in the hot-water bath to
shrink-wrap it.LIRC proclaimed that
the last two duties were not ones that Catlin performed "very
frequently," as they were primarily the jobs of the cheese cutter and
"cryovacer."Conspicuously
absent from either of LIRC's lists is the vacuum-bagging role of the cryovacer,
which involves the operation of a cryovac machine.In addition, prior to her accident Catlin had assisted in moving
cheese by use of a handcart and loading it on a pickup truck to go to the
retail store.[21]After her accident, Catlin was unable to
perform either of these two functions as well.

¶96In all, there is no disagreement between the parties or their
respective experts that Catlin was physically unable to perform a fair number
of her job duties, even with reasonable accommodations.

¶97In determining whether Catlin could undertake her job
responsibilities adequately, it appears that LIRC took mostly a quantitative
approach.LIRC simply counted the
number of duties Catlin could perform, added to this number those duties that
she could perform with accommodation, and then compared this total to the
number of jobs that she could not perform.Accordingly, it determined that Catlin could perform "most" of
her job functions.This analytical
technique is suspect, because it fails to account for the amount of time that
Catlin spent daily on each of the jobs and the relative importance of each of
the tasks that she was required to perform.Rather than engaging in such an analysis of assigning weight to Catlin's
job requirements, LIRC slapped the ambiguous modifier "most" on the
number of duties that she could still do and concluded that the duties she
could not do anymore were those that she had performed "not very frequently."

¶98There is mostly ambiguous testimony regarding how often and for
what length of time Catlin engaged in any of her duties.As a result, it is difficult to determine
how the performance of each of these tasks relates to Catlin's ability to adequately
perform the functions that are necessary to her position.[22]However, we do know the amount of time that
she spent on one of her tasks; we know that she only spent about one to
one-and-a-half hours at the beginning of her day handling her general paperwork
and administrative duties.According to
the "modifications" recommendation of Catlin's expert, however, these
"paperwork" duties would have constituted the majority of Catlin's
job upon her "accommodation."[23]

¶99In any event, Catlin and several other witnesses testified that
one of the primary responsibilities of the four employees in this department
was to undertake the jobs of the other three employees in the event of a
temporary absence or if another employee were falling behind and needed
help.For example, Catlin testified
that she often "jumped in" to take 40-pound blocks of cheese to and
from the cooler and that some days she would do this "a couple of times a
day."This task required her not
only to lift the blocks but also to reach to the higher shelves in the
cooler.Naturally, the ability of these
four employees to work together and to work smoothly by filling in when needed
was essential to the efficiency of the department's production process.In all, Catlin assisted with all the duties
of the wholesale department on a daily basis and many of these duties she could
no longer perform after her accident.

¶100Nevertheless, LIRC concluded that Catlin could be assigned to
performing all but the "heaviest physical tasks" in a department
where such tasks are commonplace and where all employees, including Catlin,
were required to perform each other's duties on a daily basis.Of course, LIRC's conclusion is based on a
different view of the facts than that of the ALJ who first heard this
case.Of particular concern is the
difference between how the ALJ and LIRC characterized the frequency by which
Catlin assisted other members of the department, including help with the
"heavy physical tasks."The
ALJ concluded in his findings of fact that each employee in the department
"regularly had to assist each other to keep work flowing smoothly
and cover for each other when temporary absences occurred."Meanwhile, LIRC concluded that the duties
which Catlin could not perform were tasks that she did not do "very
frequently" and were those that she "helped out only occasionally."Well, which is it?

II.
LEVEL OF DEFERENCE

¶101The majority begins its analysis by incorrectly finding that
LIRC's legal conclusions in this case are entitled to extremely deferential
treatment under the "great weight" standard of review.As this court has previously stated:

Great weight deference is appropriate once a court has
concluded that: (1) the agency was charged by the legislature with the duty of
administering the statute; (2) that the interpretation of the agency is one of
long-standing; (3) that the agency employed its expertise or specialized
knowledge in forming the interpretation; and (4) that the agency's
interpretation will provide uniformity and consistency in the application of
the statute.

¶102Though LIRC has experience in interpreting
Wis. Stat. § 111.34, LIRC's interpretation of the statute on
matters related to this issue is not one of "long standing."Therefore, LIRC does not satisfy the second
prong of the test.I believe that
"[t]his is precisely the situation that warrants due weight deference:
LIRC has had some experience interpreting [Wis. Stat. § 111.34],
yet has not faced the particular circumstances we have here."Brauneis v. LIRC, 2000 WI 69, ¶19,
236 Wis. 2d 27, 612 N.W.2d 635.

¶103Indeed, LIRC has yet to address the specific issue of whether
"reasonable accommodation" under the WFEA includes a duty to
eliminate multiple, basic job duties of an employee and to create a wholly
different, previously nonexistent job for a disabled employee.LIRC incorrectly cites Fields v. Cardinal
TG Co., ERD Case No. 1997-02574 (LIRC Feb. 16, 2001), as conclusive support
for the proposition that LIRC has held a reasonable accommodation to require an
employer to restructure the physical demands of the job in order to accommodate
a disabled employee.Even putting aside
that Fields was decided well after the evidentiary hearing in
this case, that case actually held that an employer may not restructure
the job of a disabled employee such that the employee is no longer able to
perform it because of a disability.

¶104Outside of Fields, LIRC cites no legal authority or
precedent from its own opinions to directly support its prior history of
following the rule it presently advances.Thus, while LIRC may have addressed cases that are similar to this
question, this is the first occurrence under these particular circumstances.Therefore, great weight deference should not
be afforded to LIRC’s interpretation.SeeLocal No. 695 v. LIRC, 154 Wis. 2d 75, 81, 452 N.W.2d 368
(1990).

¶105To the extent LIRC has addressed issues related to modifying
jobs as a means of accommodating an employee's disability, it has a spotty
history of providing uniformity and consistency in applying § 111.34.In McMullen v. LIRC, 148
Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), LIRC was given no
deference in its interpretation of § 111.34 due to its inconsistent
statements regarding whether a reasonable accommodation could ever include an
employee's transfer to another position.Id. at 274.LIRC had
stated in its own decision in the matter that transferring a disabled employee
to another position may be considered a reasonable accommodation.Id.When facing the court of appeals, however, LIRC reversed its position
and argued that an employer's duty to accommodate could never include a
transfer.Id.Not only did LIRC contradict itself within
the framework of a single case, it did so on a topic similar to the issue in
this case.

¶106Indeed, McMullen is not the only case illustrating LIRC's
limitations when interpreting § 111.34 on issues related to the present
case.In Macara v. Consumer Co-op,
ERD Case No. 8802872 (LIRC Feb. 14, 1992), LIRC held that the duty to
accommodate does not require creating a position or discharging another
employee to allow for a transfer of a disabled employee.Meanwhile, in 1988, the Wisconsin Personnel
Commission, LIRC's sister agency, had analyzed § 111.34(2)(a) in light of
§ 111.34(1)(b) and ruled that the WFEA does not require an employer to
create a new job or reassign job duties to other staff as a reasonable
accommodation.Harris v. DHSS,
Case No. 84-0109-PC-ER (Wis. Personnel Comm'n Feb. 11, 1988).Rather, "the employer's obligation is
limited to the job-related responsibilities of the handicapped individual's
employment vis-à-vis the particular job he or she occupies or for which he or
she is applying."Id. at
14-15.In both of these decisions, the
foregoing conclusions were not particular to the facts of the case but were
offered as general legal principles.

¶107If nothing else, this history indicates inconsistency in agency
interpretations of Wis. Stat. § 111.34 on this matter."[S]pecial deference to be afforded an
agency is the result of a course of uniform interpretation over a period of
time."Local No. 695, 154
Wis. 2d at 84.Given the
preceding history, there has hardly been uniform application of § 111.34
by LIRC and the Wisconsin Personnel Commission.Therefore, due weight should clearly be afforded in this case.

¶108Under the due weight standard, "a court need not defer to
an agency's interpretation which, while reasonable, is not the interpretation
which the court considers best and most reasonable."Harnischfeger, 196
Wis. 2d at 660 n.4; see alsoBrauneis, 236
Wis. 2d 27, ¶20 ("Pursuant to due weight deference, an agency's
statutory interpretation is accorded some weight, but is not
conclusive.").This court is not
bound by LIRC's statutory interpretation.SeeBrauneis, 236 Wis. 2d 27, ¶15."The fact that the agency's
interpretation is reasonable does not mean that its interpretation will
necessarily be upheld.If a court finds
an alternative interpretation more reasonable, it need not adopt the agency's
interpretation."UFE, 201
Wis. 2d at 287.Therefore, if
this court finds, by means of its own independent analysis, an alternative
interpretation that is more reasonable, then it need not adopt the agency's
interpretation.

¶109By adopting an incorrect level of deference regarding LIRC's
legal conclusion, this court has abdicated its role to define the law
established under Chapter 111 and has passively allowed the establishment of a
wholly less reasonable interpretation of the law.At a minimum, given the inconsistency of the administrative
agencies addressing similar issues, and the lack of LIRC decisions addressing
this precise issue, this court should have engaged in an independent review of
what § 111.34 demands on this question.

III.
PROPER APPLICATION OF WIS. STAT. § 111.34

¶110The WFEA prohibits employment discrimination on the basis of
disability.See
Wis. Stat. §§ 111.321, 111.34.Accordingly, it is unlawful employment discrimination to "refus[e]
to reasonably accommodate an employee's or prospective employee's disability
unless the employer can demonstrate that the accommodation would pose a
hardship on the employer[] . . . ."Wis. Stat. § 111.34(b).

¶111However, the legislature has provided affirmative defenses to a
WFEA claim of employment discrimination based on disability.In the present case, we need only look at
§ 111.34(2)(a), which states:

Notwithstanding s. 111.322
[the prohibition against employment discrimination], it is not employment
discrimination because of disability to refuse to hire,
employ . . . to bar or terminate from
employment . . . any
individual . . . if the disability is reasonably related to
the individual's ability to adequately undertake the job-related
responsibilities of that individual's employment . . . .

Wis. Stat. § 111.34(2)(a)
(emphasis added).

¶112The majority quite accurately describes the relationship between
§§ 111.34(1)(b) and 111.34(2)(a), stating: "Taken together, [the
provisions] require an employer to prove that even with reasonable
accommodations, the employee would not be able to perform his or her job
responsibilities, or that, where reasonable accommodations would enable
the employee to do the job, hardship would be placed on the
employer."Majority op., ¶32
(citing Target Stores v. LIRC, 217 Wis. 2d 1, 17, 576
N.W.2d 545 (Ct. App. 1998)) (emphasis added).Unfortunately, the majority fails to apply the foregoing standard
and, in the process, adopts LIRC's improper application of § 111.34.LIRC's approach rewrites the statute to
generate a nonexistent requirement that employers retain or hire someone who is
unable to perform the responsibilities of any existing job, even with
reasonable physical accommodations.

¶113Crystal Lake has met the requirements of
§ 111.34(1)(b) and § 111.34(2)(a), even under the formulation
articulated by the majority.First,
Catlin is unable to perform all her existing job responsibilities, much
less perform them all adequately as required by § 111.34(2)(a).Second, Catlin is unable "to do the
job" that she has been performing.Instead, she is only able to perform a new and more limited job——one
that is substantively different from her prior position.

¶114As discussed earlier, Catlin is now unable to do significant,
daily elements of her job.In
particular, she is now frequently unable to "step in" and assist other
members of the department to keep production going smoothly.It is unreasonable to interpret
§ 111.34 to require Crystal Lake to retain an employee who, by virtue of
her disability, is unable to perform these necessary elements of her job and to
create a job devoid of these duties, when no such job previously existed.[24]

¶115LIRC itself has argued as much, and in a situation much more
favorable to an employee's protections under § 111.34.In LIRC's brief before the court of appeals
in McMullen, a case that is discussed above, LIRC argued that "the
duty to accommodate an employee's handicap under the
WFEA . . . does not require an employer to transfer the
employe to a different job."Brief
of LIRC at 24, McMullen v. LIRC, 148 Wis. 2d 270.

¶116To be sure, some job responsibilities may not be necessary, in
that they do not fundamentally alter the job being performed. Nevertheless, as a general matter, the
reasonable accommodations required under § 111.34(1)(b) must go to aiding
the employee or applicant in performing the job responsibilities for which they
are, or will be, hired.There will be
times when an employer will have to endure additional costs to reasonably
accommodate an individual so that the employee can perform all of his or her
job duties.Because of the additional
cost of employing this individual over someone who would not require
accommodation, the employer would likely prefer, as a economic matter, not to
hire the disabled person.The WFEA,
however, has made this type of discrimination unlawful.It is this protection that is wisely
provided by the WFEA.

¶117What the WFEA does not make unlawful is an employer's decision
not to hire or retain an employee who, because of his or her disability, cannot
perform the necessary duties of the job, even with all reasonable
accommodations.

¶118The questionable reasoning of LIRC's interpretation is seen in
the circularity of the majority's holding, in which it states, "we hold
that requiring Crystal Lake to modify the job duties of Susan Catlin and
make physical accommodations to the workplace, was not unreasonable.With such reasonable accommodations, she
would have the ability to undertake, adequately, her job-related
responsibilities."Majority
op., ¶3.Assuming that "job
duties" and "job responsibilities" are synonymous, how can
Catlin undertake her job-related responsibilities, "adequately" or
otherwise, if she does not need to perform those responsibilities?LIRC and the majority use "modify"
as a euphemism so as to require Crystal Lake to eliminate multiple, basic
duties of the job for which Catlin was hired.Even worse, the majority endorses the nebulous notion that an employee
or applicant need only perform "some" or "most" of his or
her job duties.[25]

¶119Catlin and LIRC also misconstrue the well-expressed legislative
intent of the WFEA.The WFEA does not
mandate the full employment of people with disabilities per se.It encourages the full employment of properly
qualified persons with disabilities.Wis. Stat. § 111.31(3).Catlin and LIRC consistently argue for——and the majority apparently
grants them——an interpretation of § 111.34 that effectuates a purpose in
the WFEA whereby Crystal Lake is required to give Catlin some job——any
job——even one that does not fit within the structure of the business
enterprise.This outcome is not what
the WFEA intends for persons who are unable to perform a job.By virtue of her injuries, Catlin was not
properly qualified to perform the job for which she was hired; nor could she
have been reassigned to another job that was open for which she was qualified.

¶120Catlin does not argue that reasonable physical
accommodations would adequately and reasonably compensate for her disability
and thereby allow her to perform the necessary functions of her job.Therefore, even if the court finds that the
physical accommodations demanded by Catlin and LIRC are not unreasonable and do
not impose a hardship,[26]
§ 111.34(2)(a) still requires that the employee be able to actually do the
necessary functions of the job with those accommodations.Again, it is conceded that Catlin is unable
to do many of the necessary duties of her job that she had performed daily.

¶121The inescapable effect of LIRC's ruling is that Crystal Lake
must either (1) have nobody perform the duties that Catlin used to do, and
thereby decrease productivity; (2) hire a new employee to do these duties and
incur unnecessary costs[27];
or (3) have other existing employees undertake the duties that Catlin can no
longer perform, thereby taking these employees away from the duties they would
otherwise be performing.Each of these
options necessarily imposes hardship on an employer in a manner that
§ 111.34(2)(a) expressly states need not occur.

¶122Businesses must worry about profit, which is achieved through
efficiency.Crystal Lake assigned
specific job duties to the individuals in Catlin's department, presumably to
increase efficiency.Indeed, all the members
of the department were cross-trained in all the other jobs in order to be more
efficient and diverse in their roles in the production process.Take away one of the components in this
process, and an intimate, finely tuned, production process loses the level of
productivity set by the employer for this four-person unit.

¶123As the majority admits, all four workers in Crystal Lake's
wholesale department were cross-trained in all four positions, "and all
were capable of assisting one another when an employee fell behind, or when the
department was busier than usual."Majority op., ¶8.[28]This "assistance" is a requirement
of each person's job, not a matter of mere "capability."By virtue of Catlin's disability, which
confines her to a wheelchair, she is now frequently incapable of assisting
other employees in the department as needed. How, then, can she perform these necessary elements of her
job?

¶124Remarkably, LIRC and the majority twist the significance of this
cross-training to make much out of the not-so-surprising testimony that
Catlin's mother and sister would "help" with the job duties that
Catlin could not do.[29]Majority op., ¶¶70, 78.This discussion is irrelevant and
inappropriate.Section 111.34(2)(a)
addresses the ability of the employee or applicant at issue to
"adequately undertake the job-related responsibilities of that
individual's employment."In
addition, it ignores the fact that such "accommodation" necessarily
diverts Catlin's mother and sister from their own duties.

¶125Finally, there has been much ado about nothing related to
Crystal Lake's method of determining if Catlin could have been
accommodated.It is not necessary in
this case that Crystal Lake, when it assessed whether Catlin could be reasonably
accommodated to perform her job, talk with Catlin or inform the professional
evaluator anything more about her disability than that she was confined to a
wheelchair.In some instances, such as
this case, there are certain realities in what a person confined to a
wheelchair is physically unable to do, even with all reasonable physical
accommodation.

¶126It is telling that the majority offers no authority to directly
support the reasonableness of LIRC's interpretation of § 111.34.Contrary to what the majority asserts, the
cases it cites do not hold "that a reasonable accommodation [is] not
limited to only an accommodation that would permit the employee to perform all
of his or her job responsibilities."Majority op., ¶47.

¶127Target Stores, 217 Wis. 2d 1, involved a
temporary and treatable disability.The
court of appeals held in favor of the complainant, even though the
accommodation would not allow the complainant to perform all her job duties
immediately.Id. at 14.However, the complainant's disability (sleep
apnea) was a temporary one that was treatable.After a short treatment period, the employee would have likely been able
to perform all her job duties.Id.
at 7.It is unlikely that Catlin's rehabilitation
will ever allow her to perform all her job duties, in either the short-term or
long-term future.Target Stores
is clearly distinguishable.

¶128In McMullen v. LIRC, 148 Wis. 2d 270, 434
N.W.2d 830 (Ct. App. 1988), the complainant was seeking a transfer to an
open position for which he was qualified.The court held that a reasonable accommodation may include a transfer to
an open position for which the employee is qualified, though, depending upon
the facts of each individual case, such transfer may also be considered a
hardship.Id. at 271.The majority's assertion that Catlin's
required accommodation is similar to what occurred in McMullen and
"was essentially a change or modification in the employee's job-related
responsibilities," majority op., ¶49, is inaccurate.In McMullen there was a transfer to a
different, vacant position that the company needed to fill anyway.Catlin is not requesting a transfer to an
existing, open position for which she is qualified.She is asking for her old job back, with certain daily job
responsibilities eliminated because she can no longer adequately perform them,
even with accommodation.This is a
critical distinction from McMullen.

¶129Finally, in Frito Lay, Inc. v. LIRC, 95
Wis. 2d 395 (Ct. App. 1980), the issue of accommodation was not one
in which any new job was created; rather the complainant was once again
reassigned to a position that he was qualified to fill——namely, driving
intrastate trucking routes rather than driving interstate routes, which his
disability prevented him from doing.

¶130In all, unlike Target Stores, McMullen, and Frito
Lay, the position that LIRC and the majority opinion claim that Catlin
should "fill" did not exist at the time of her injuries, did not
exist when Crystal Lake was assessing whether Catlin could be adequately
accommodated to do her job, and exists now only by fiat of LIRC.

¶131In all, LIRC's interpretation of § 111.34, as adopted by
the majority, is highly questionable and imposes an unreasonable burden on
Wisconsin businesses.Section 111.34
cannot be read to require that an applicant or employee only be able to perform
"some" or "most" of the necessary responsibilities of the
job.See majority op., ¶63.Rather, a reasonable accommodation under
§ 111.34(1)(b), when read together with § 111.34(2)(a), is one that
permits an employee to perform adequately all of his or her necessary job duties
or, in some instances, to perform all the necessary job duties of another
existing job.Under the facts of this
case, Crystal Lake has fully met its burden under § 111.34(2)(a) of
demonstrating that Catlin's disability is reasonably related to her ability to
adequately undertake the job responsibilities of her employment.

IV.
DUE PROCESS & SUBSTANTIAL EVIDENCE

¶132The majority opinion concludes by rejecting Crystal Lake's
contention that LIRC improperly reached its decision by failing to confer with
the ALJ regarding evidence submitted before the ALJ.The majority states that LIRC's findings did not "hinge on
issues of witness credibility," and therefore LIRC was not required to
consult with the ALJ.Majority op. ¶¶4,
54.

¶133The majority errs, however, in suggesting that the only element
of credibility at issue was that of Crystal Lake's operations manager, Phillip
Robertson, regarding the cost of constructing a wheelchair-accessible
bathroom.This is incomplete.The credibility assessments required for
LIRC to reach its conclusions involved other matters.Of primary importance are the conflicting findings regarding the
frequency by which Catlin had performed the job responsibilities that she could
not perform after her accident.LIRC's
factual findings regarding which job responsibilities the complainant could or
could not perform after her accident, even with physical accommodation, were
based almost completely on testimony from the complainant.See majority op., ¶63 ("Catlin
felt that she would be able to perform most tasks that were part of her job
with little or no accommodation.").From this, LIRC concludes that Catlin could perform "most" of
her duties.See majority op.,
¶63.

¶134The problem is that this ultimately dispositive factual finding,
which is of questionable reliability and is based on credibility assessments,
is then applied to LIRC's new and incorrect interpretation of
§ 111.34.It is telling that even
the majority seems tentative on this conclusion, stating "Crystal Lake
could have accommodated Catlin's disability [ ] by modifying her
responsibilities.This is an
accommodation, we hold, that appears to be reasonable under the
circumstances and within the purview of the WFEA."Majority op., ¶78 (emphasis added).

¶135Even if LIRC's interpretation of § 111.34 were correct, the
ALJ based his assessment not solely upon an adoption of Crystal Lake's theory
of law, but also on his findings that the job duties that Catlin could not now
perform were ones she used to do "regularly."Therefore, LIRC needed to consult with the
ALJ to determine the basis upon which it reached a different factual conclusion
on this matter.[30]SeeHermax Carpet Marts v. LIRC,
220 Wis. 2d 611, 617, 583 N.W.2d 662 (Ct. App. 1998); Hoell
v. LIRC, 186 Wis. 2d 603, 614, 522 N.W.2d 234 (Ct. App.
1994).Again, even under LIRC's
interpretation of § 111.34, this factual determination was critical.Furthermore, Catlin, LIRC, and the majority
have each relied on testimony from Catlin's mother and sister, who happen to be
two of the three other employees in the wholesale department, who claimed that
they could "pick up the slack" and cover Catlin's job duties as
needed.Majority op., ¶29.The credibility of these statements is also
at issue.

¶136These findings, it seems to me, are undoubtedly based on
credibility assessments.Therefore, I
disagree that it was permissible for LIRC to reach factual conclusions without
having conferred with the administrative law judge, whom LIRC ultimately
reversed.At a minimum, this case
should be remanded so that LIRC can be required to consult with the ALJ and to
determine why LIRC and its administrative law counterpart reached two different
assessments regarding the nature of the duties Catlin could and could not do
and to determine if the ALJ's conclusion was based on more than merely an
adoption of a different rule of law.

(1) Employment discrimination because of
disability includes, but is not limited to:

(b)Refusing
to reasonably accommodate an employee's or prospective employee's disability
unless the employer can demonstrate that the accommodation would pose a
hardship on the employer's program, enterprise or business.

Notwithstanding s. 111.322, it is not
employment discrimination because of disability to refuse to hire, employ,
admit or license any individual, to bar or terminate from employment,
membership or licensure any individual, or to discriminate against any
individual in promotion, compensation or in terms, conditions or privileges of
employment if the disability is reasonably related to the individual's ability
to adequately undertake the job-related responsibilities of that individual's
employment, membership or licensure.

[5] Catlin
was "catheterized" when she first sought reinstatement, but by the
time of LIRC's review she was using a bathroom.LIRC, Fair Employment Decision, Finding 18, p. 5 (May 5, 2000).

[6] LIRC
ordered Crystal Lake to pay Catlin the sum she would have earned as an employee
from the date she sought reinstatement until she resumed employment with
Crystal Lake, refused a valid reinstatement offer, or it was shown that
reinstatement was not feasible.

[7] Hereinafter,
the respondents will usually be referred to collectively as Catlin.

Upon such review due weight shall be accorded the
experience, technical competence, and specialized knowledge of the agency
involved, as well as discretionary authority conferred upon it. The right of
the appellant to challenge the constitutionality of any act or of its
application to the appellant shall not be foreclosed or impaired by the fact
that the appellant has applied for or holds a license, permit or privilege
under such act.

[9] Wisconsin
Stat. § 227.57(6) provides:

If the agency's action depends on any fact
found by the agency in a contested case proceeding, the court shall not
substitute its judgment for that of the agency as to the weight of the evidence
on any disputed finding of fact.The
court shall, however, set aside agency action or remand the case to the agency
if it finds that the agency's action depends on any finding of fact that is not
supported by substantial evidence in the record.

[10] The
dissent argues for application of the due weight deference standard of review,
which it characterizes as one which allows the reviewing court to accept
"an alternative interpretation that is more reasonable."Dissent, ¶108.While we believe that great weight deference is appropriate here,
even under a due weight deference standard, our approval of LIRC's interpretations
of the statutory sections involved would not change.Its interpretations are "more reasonable" than the
alternatives offered by Crystal Lake.

The term "qualified individual with a
disability" means an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires. For the purposes of this
subchapter, consideration shall be given to the employer's judgment as to what
functions of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions of the job.

As used in subsection (a) of this section, the
term "discriminate" includes:not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business
of such covered entity.

Subject to ss. 111.33 to 111.36, it is an act
of employment discrimination to do any of the following:

(1) To refuse to hire, employ, admit or license
any individual, to bar or terminate from employment or labor organization
membership any individual, or to discriminate against any individual in
promotion, compensation or in terms, conditions or privileges of employment or
labor organization membership because of any basis enumerated in s. 111.321.

[18] This
court upheld the court of appeals' decision in FritoLay by an
evenly divided court.We recognize that
the facts in Frito Lay are distinguishable from the case at bar.In Frito Lay the drivers chose their
own truck routes based on seniority, and voluntarily left the intrastate routes
to the complaintant in that case.In
this case the job duties of Catlin's sister and mother are not determined by
them, but rather, set by the employer, Crystal Lake.However, we still find Frito Lay persuasive in
demonstrating that, even prior to the current version of the WFEA, this court
upheld a voluntary re-arrangement of job responsibilities by the employees as
reasonable. Frito-Lay, Inc. v. LIRC, 95 Wis. 2d 395, 290 N.W.2d 551
(Ct. App. 1980).

[19] The
dissent attempts to lead us into a trap, involving the employee's ability to
perform "some" as opposed to "most" or "all" job
responsibilities.Dissent, ¶89, 113,
118, 127.The proper emphasis is on the
employee's ability to perform her or his job responsibilities adequately,
rather than on terms such as "some" or "most" or
"all."

[21] This
pickup truck loading process apparently took place primarily, though not
exclusively, at Christmas time.

[22] One
duty that LIRC "found" Catlin able to do was "train."Catlin testified that there was a man who
was not cross-trained when she began in the wholesale department.Because Catlin was the lead worker, it is
assumed that she took on the cross-training of this individual.This is the only instance in which Catlin
indicated that she may have previously engaged in training, and even this is an
assumption.Yet "training" is
one of LIRC's findings of what Catlin could do after her injury.To be sure, it was also found that Catlin
could no longer aid in loading and unloading trucks.There is some testimony that she only needed to do this
occasionally, especially around December.It would seem that these two, relatively minor functions would cancel
each other out.

[23] According
to Jeffrey Annis, the rehabilitation technologist who conducted an assessment
of Catlin's job site and job capabilities for Catlin:

As far as I can see,
the only opportunity [Catlin] would have had to return to that position is if
there would have been numerous accommodations put in place.The easier option would be to make
modifications to her job description so she would be required, as lead
person, to only do the paper work, final packaging, and filling out
invoices, receipts, and packing lists.

(Emphasis added.)

[24] Would
this court have reached the same decision if Crystal Lake declined to hire
someone for the wholesale department's lead position because that applicant
suffered from Catlin's disability and was unable to do the same elements of the
job that Catlin was unable to perform?The WFEA applies equally to applicants as it does to current
employees.Wis. Stat. § 111.32(1).After today's decision, a Wisconsin employer
must be prepared to post job openings in which it may ultimately be required to
hire someone who, even with accommodations, will not be able to perform the
duties attributed to that position.

[25] This
answer is inconsistent with the majority's formulation of the primary issue in
this case, which it describes as: "whether, with reasonable accommodations
Catlin must then be able to perform all of the job-related responsibilities
adequately."Majority op., ¶44.

[26] I do
not concede that Crystal Lake has failed to establish hardship based on the
physical accommodations required of the facility to handle Catlin's needs.

[27] LIRC
stated in its Memorandum Opinion that Crystal Lake failed to establish that it
would have needed to hire additional help if Catlin was permitted not to
perform all her duties.However, before
the ALJ, Phillip Robertson, Crystal Lake's operations manager, directly
testified that the company would have been required to hire additional help in
this situation.

[28] We
would add to these circumstances assisting each other at times when an employee
was absent, either due to illness or to other demands of the job.

[29] In
fact, the majority states that Catlin argued that "[t]he other department
members did not object even if [performing Catlin's heavy physical tasks] meant
they would get disproportionate share of those duties."This appears to be an overstatement, as only
two of the three other members (Catlin's mother and sister) testified that they
would agree to do so.In addition, this
testimony, besides being inherently biased, is speculative, because by the time
of the hearing in this case, Crystal Lake had apparently eliminated the
wholesale department at which these employees worked.

[30] As but
one example of Catlin's testimony that undermines LIRC's "not very
frequently" finding is the following:

[ATTORNEY GROISS]:Now you indicated . . . that the cutting of the
cheese was a cutter's responsibility, and you say you didn't——you rarely had to
cut the cheese, but you took it upon yourself to do that; is that correct?

[CATLIN]:Yes.

[GROISS]:And
whenyou're talking about
this——this——this cutting of the cheese, when you say "rarely," you
would be cutting cheese several times during the course of the week, would you
not, as a normal course of your job function?

[CATLIN]:Not
several, no.

[GROISS]:What,
once a week?You have no answer?

[CATLIN]:It's
a hard question to answer.

[GROISS]:And
that's because you're always doing these various functions; is that correct?

[CATLIN]:If
we get busy, yeah.

[GROISS]:You're
always being asked to fill in this instance and do these various jobs; is that
correct?